T-2014-87
John Paul Gariepy (Plaintiff)
v.
Administrator of the Federal Court of Canada,
The Public Service Commission and The Queen
(Defendants)
INDEXED AS; GARIEPY V. CANADA (ADMINISTRATOR OF FED
ERAL COURT)
Trial Division, McNair J.—Vancouver, April 25;
Ottawa, August 22, 1988.
Public Service Selection process — Competitions
Career aspirations of public servant thwarted when position
made bilingual imperative Obtaining interlocutory injunc
tion staying selection process in action for declaratory relief
Motion for orders permitting position to be changed to bilin
gual non-imperative, staffing of position and strike statement
of claim as redundant — Whether changing position to bilin
gual non-imperative exhausting scope of action Statement
of claim not struck out Admission that decision to classify
position of Federal Court District Administrator at Vancouver
as bilingual imperative may have been mistake — Defendants
trying to defuse issue Interlocutory injunction directed at
fountainhead of statutory authority for public service compe
tition Necessity for taking public interest into account —
Order to go permitting change in language requirement and
proceeding with selection process.
Judicial review Equitable remedies Injunctions —
Plaintiff s career aspirations frustrated when language
requirements of public service position changed to bilingual
imperative, as unable to meet requirements and ineligible to
compete — Action commenced alleging I) reclassification
unreasonable, arbitrary and perverse, and 2) breach of duty of
fairness Interlocutory injunction staying selection process
granted Motion for orders permitting reclassification of
language requirements of position to bilingual non-imperative
and staffing of position As interlocutory injunction aimed
at statutory authority pertaining to public service competition,
necessary to consider public interest in weighing balance of
convenience — Contrary to public interest to prevent rectifica
tion of mischief interlocutory injunction designed to stop —
Cause of complaint not prejudiced by grant of such order.
Judicial review — Equitable remedies Declarations
Reclassification of language requirements of public service
position rendering plaintiff ineligible to compete Action
seeking, inter alia, declarations I) plaintiff qualified to com
pete for position and 2) defendants owing duty of fairness to
plaintiff in establishment of qualifications for position, and in
assessing his merit therefor — Motion seeking to reclassify
language requirements to bilingual non-imperative and conse
quently to strike statement of claim as redundant Exami
nation of nature and scope of declaratory relief — Court
having jurisdiction to grant declaratory relief even if no cause
of action, but such power exercised carefully Whether relief
sought having any practical effect in resolving real dispute —
Declaration as to legal rights not rendered academic by per
mission to reclassify language requirements.
Practice Pleadings — Motion to strike Statement of
claim seeking order setting aside decision designating public
service position as bilingual imperative, and declarations re:
legal rights — Order permitting change of language require
ments to bilingual non-imperative, allowing plaintiff to com
pete granted — Motion to strike statement of claim as
immaterial and redundant dismissed — Defendants precluded
from relying on R. 419(b) and (f as already pleaded over to
statement of claim — Allegations as to violation of plaintiff's
legal rights and claims for declaratory relief raising justi-
ciable disputes requiring adjudication at trial.
This was a motion for orders (I) permitting the reclassifica-
tion of the language requirements of the position of District
Administrator, Vancouver, Federal Court, back to what it was
originally (bilingual non-imperative), (2) permitting the
Administrator to staff the position, and (3) striking out the
statement of claim as immaterial and redundant. The plaintiff's
career aspirations were frustrated when the language require
ments of the position were originally reclassified to bilingual
imperative, as he was unable to meet the requirements and was
therefore ineligible to compete for the position. In his statement
of claim, the plaintiff alleged that the Administrator's actions
had been unreasonable, arbitrary and perverse, and that he had
breached a duty of fairness owed to the plaintiff. The plaintiff
sought I) an order setting aside the decision designating the
position as bilingual imperative; 2) a declaration that the
plaintiff was qualified to compete for the position; and 3) a
declaration that the defendants were under a duty of fairness to
the plaintiff in the establishment of qualifications for the
position and in the assessment of his merit therefor. An inter
locutory injunction staying the selection process was granted.
The plaintiff argued that reclassification of the position back to
what it had been did not exhaust the full scope of his action,
and that the declaratory relief was not academic because the
resolution of the dispute as to his qualifications would have
significant practical consequences. The plaintiff also submitted
that the defendants were precluded from asserting abuse of
process as they had already pleaded over to the statement o
claim. Finally, it was submitted that any change in the status
quo would prejudice the plaintiffs cause of complaint.
Held, the Administrator should be permitted to change the
language requirements from bilingual imperative to bilingual
non-imperative and to staff the position, but the statement of
claim should not be struck.
The public interest was to be considered in weighing the
balance of convenience vis-Ã -vis reclassifying the position back
to bilingual non-imperative because the interlocutory injunction
was aimed at the fountainhead of statutory authority pertaining
to the public service competition. The defendants are seeking to
rectify the mischief which the interlocutory injunction was
designed to stop. They should be allowed to reclassify the
position back to bilingual non-imperative as it would be con
trary to the public interest to delay the selection process and
competition. The plaintiff's "cause of action" as defined in
Jackson v. Spittal, would not be prejudiced by such an order,
nor would he be deprived of a fair chance of litigating his cause
of complaint.
The nature and scope of declaratory relief had to be reviewed
to determine whether a declaration could have any practical
and significant effect in resolving some real dispute arising
from the facts. Rule 1723 provides that the Court may make
binding declarations of right whether or not consequential relief
is claimed. The courts may grant declaratory relief where there
is no cause of action, but such power should be exercised
carefully. The plaintiff's complaint of unfairness would not be
so changed by the reclassification of the position to "bilingual
non-imperative" that the subject-matter has ceased to be a
matter of tangible dispute, whereby an adjudication of the issue
would be of little practical significance.
The defendants were precluded from relying on Rules
419(1 )(b) and (/) in support of the motion to strike because
they had pleaded thereto. As Rule 419 was set out at large in
the notice of motion, the argument that the reclassification of
the position leaves the plaintiff without a reasonable cause of
action pursuant to Rule 419(1)(a) was to be considered. The
allegations pleaded in the statement of claim with respect to the
violation of the plaintiff's legal rights and the claims for
declaratory relief were sufficient to raise justiciable disputes
requiring adjudication. The defendants had not met the onus of
establishing on balance of probability that the plaintiff's action
for declaratory relief was so obviously futile and devoid of
merit that it ought to be struck on summary motion.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Federal Court Rules, C.R.C., c. 663, RR.
419(1)(a),(b),(/), 1723.
Judicature Act (U.K.), 1873, c. 66.
Public Service Employment Act, R.S.C. 1970, c. P-32.
Public Service Official Languages Appointment Regula
tions, SOR/8I-787.
Public Service Official Languages Exclusion Approval
Order, SOR/8l-787.
CASES JUDICIALLY CONSIDERED
APPLIED:
Landreville v. The Queen, [1973] F.C. 1223; 41 D.L.R.
(3d) 574 (T.D.); Kelso v. The Queen, [1981] 1 S.C.R.
199; 120 D.L.R. (3d) I; Procter & Gamble Co. v. Nabis-
co Brands Ltd. (1985), 62 N.R. 364; 5 C.P.R. (3d) 417
(F.C.A.); Manitoba (Attorney General) v. Metropolitan
Stores Ltd., [1987] 1 S.C.R. 110; Ellis v. Home Office,
[1953] 2 Q.B. 135 (C.A.); Jackson v. Spittal (1870),
L.R. 5 C. P. 542; Montreuil v. The Queen, [1976] 1 F.C.
528 (C.A.).
CONSIDERED:
Simmons v. Foster, [1955] S.C.R. 324; [1955] 2 D.L.R.
433; MacLeod et al. v. White (1955), 37 M.P.R. 341
(N.B.S.C.); Canadian Union of Postal Workers v. Attor
ney General of Canada (1978), 93 D.L.R. (3d) 148
(F.C.T.D.); Gibson v. Union of Shop, Distributive and
Allied Workers, [1968] 2 All E.R. 252 (Ch. D.); Grant v.
Knaresborough Urban Council, [1928] Ch. 310.
REFERRED TO:
Waterside Ocean Navigation Co., Inc. v. International
Navigation Ltd., [1977] 2 F.C. 257 (T.D.); Vulcan
Equipment Co. Ltd. v. The Coats Co., Inc., [ 1982] 2 F.C.
77 (C.A.); Operation Dismantle Inc. et al. v. The Queen
et al., [1985] 1 S.C.R. 441; 18 D.L.R. (4th) 481.
COUNSEL:
J. Aldridge for plaintiff.
R. Cousineau, Q.C. for defendants.
SOLICITORS:
Rosenbloom & Aldridge, Vancouver, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MCN AIR J.: This is a motion of the defendants
for the following relief:
a) AN ORDER permitting the Defendant, the Administrator of
the Federal Court of Canada, to change the bilingual
requirements of competition #87-FCT-CC-VAN-92-95,
District Administrator, Vancouver, from bilingual impera
tive to bilingual non-imperative; and
b) A FURTHER ORDER permitting the Defendant, the Adminis
trator of the Federal Court of Canada, to pursue the
selection process and competition to fill or staff the position
of District Administrator, Vancouver; and
c) A FURTHER ORDER, striking out Plaintiff's Statement of
Claim pursuant to rule 419 on the ground that upon the
Orders sought in paragraphs a) and b) being delivered, the
Plaintiff's Statement of Claim is immaterial and redundant.
In or about the month of August, 1987 the
position of District Administrator in the Vancou-
ver local office of the Registry of the Federal
Court of Canada was classified for the first time as
"bilingual imperative" at the instance of the
defendant Administrator, Robert Biljan. Acting on
the advice of counsel, the Administrator now seeks
the permission of the Court to reclassify the bilin
gual requirements of the competition for the posi
tion of District Administrator of the Vancouver
office from bilingual imperative to bilingual non-
imperative, as his affidavit in support of the
motion avers. Unfortunately, much water has
passed under the bridge from the time of the initial
classification.
During the month of August, 1987 the plaintiff
was informed by the incumbent District Adminis
trator, Charles E. Stinson, of his pending promo
tion and transfer to Ottawa with the result that the
position of District Administrator would become
open for competition. At about the same time, the
defendant Administrator issued the advertisement
for the competition, which classified the position
as bilingual imperative. The plaintiff had been
occupying the position of Assistant District
Administrator in the Vancouver local office from
March 31, 1982 until approximately January,
1987, when his position was reclassified to that of
clerk of process. During all that he ably performed
the duties of Assistant District Administrator and
on a number of occasions filled in for the District
Administrator during his absence. Neither the
plaintiff nor the incumbent District Administrator,
Mr. Stinson, had sufficient proficiency in the
French language to qualify for the bilingual imper
ative competition. The plaintiff felt aggrieved by
the sudden decision of the defendant Administra
tor to classify the position as bilingual imperative
by reason that it seemed to frustrate completely
his reasonable expectation of being eligible to com
pete for the position. The result was the present
lawsuit launched by statement of claim filed on
September 23, 1987. Paragraphs 27 and 28 of the
statement of claim set out the essential gravamina
of the plaintiffs complaint, which are: (1) that the
defendant Administrator's decision to classify the
position of District Administrator as "bilingual
imperative" without stipulating that it might be
filled by a "non-imperative appointment" was
unreasonable, arbitrary and perverse, having
regard to the nature of the position and the provi
sions of the Public Service Employment Act
[R.S.C. 1970, c. P-32], the Public Service Official
Languages Exclusion Approval Order [SOR/81-
787] and the Public Service Official Languages
Appointment Regulations [SOR/81-787]; and (2)
that the defendant Administrator and the defen
dant Public Service Commission breached a duty
of fairness owed to the plaintiff by classifying the
position as "bilingual imperative". The plaintiffs
statement of claim concludes with the following
prayer for relief:
(a) an order setting aside the decision of the Defendant
Administrator that the position be designated as "bilingual
imperative", rather than "bilingual non-imperative";
(b) a declaration that the Plaintiff is qualified to compete for
the position of District Administrator in the Registry of
the Federal Court of Canada located at Vancouver, British
Columbia;
(c) a declaration that the Defendants are under a duty of
fairness to the Plaintiff in the establishment of qualifica
tions for the position of District Administrator in the
Federal Court of Canada and in the assessment of the
Plaintiff's merit therefor;
(d) an order that the Defendants not appoint anyone to the
said position until such time as the Plaintiff has had a full
and fair opportunity to compete and have his qualifications
assessed by the Defendant P.S.C.;
(e) an order that a representative of the Defendant P.S.C. be a
member of any Rating Board established to fill the
position;
(f) an interim and interlocutory injunction;
(g) costs;
(h) such further and other relief as to this Honourable Court
may seem meet.
Coincidentally with the filing of his statement of
claim, the plaintiff brought a motion to enjoin the
defendants from proceeding with the competition
for the position of District Administrator in the
Vancouver office, which came on for hearing
before Mr. Justice Muldoon on October 8, 1987.
The learned Judge reserved decision and, after
filing extensive and cogent reasons, made an order
in the following terms on November 6, 1987, viz:
I. THIS COURT ORDERS that the defendants the Administra
tor of the Federal Court of Canada (hereinafter called: the
Administrator) and the Public Service Commission (here-
inafter called: the Commission) be, and they are hereby
enjoined and restrained from making any appointment to,
or from filling any vacancy in, the position of District
Administrator in the Vancouver local office of the registry
of this Court until after judgment shall be pronounced
following the trial of this action, or until so permitted by
further order of this Court;
2. THIS COURT FURTHER ORDERS that the said defendants,
the Administrator and the Commission, do stay and hold in
abeyance the selection process and competition presently
being conducted to fill or staff the position of District
Administrator in the Vancouver local office of the registry
of this Court until after judgment shall be pronounced
following the trial of this action, or until so permitted by
further order of this Court;
3. THIS COURT FURTHER ORDERS that the said defendants,
the Administrator and the Commission be, and they are
hereby restrained and enjoined from obliging the plaintiff
to undergo any further examination of his proficiency in
the French language as a condition of his eligibility for the
competition to fill or staff the position of District Adminis
trator of the Vancouver local office of the registry of this
Court until after judgment shall be pronounced following
the trial of this action, or until so permitted by further
order of this Court; and
4. THIS COURT FURTHER ORDERS that the defendants do pay
to the plaintiff his taxed party-and-party costs of and
incidental to this application in any event of the cause.
The matter before me was fully and ably argued
by counsel for the parties.
It was urged on behalf of the defendants that
the Administrator should be entitled to change his
mind and reclassify the position to what it was
originally, namely, bilingual non-imperative. Once
permission is given for that then the selection
process takes over and the plaintiff is afforded the
same opportunity as anyone else to compete for the
position. Such reclassification would make the
plaintiff's action totally redundant and immaterial,
with the result that it should be struck under Rule
419(1) [Federal Court Rules, C.R.C., c. 663] and,
more particularly, paragraphs (b) and (J) thereof.
Counsel for the plaintiff makes the point that
the reclassification of the position to bilingual
non-imperative does not effectively exhaust the full
scope of the plaintiff's action, the essential purpose
of which is to initially determine the plaintiffs
legitimate aspirations for career advancement. He
strongly contends that the defendants' apparent
change of mind and heart is not a sufficiently
compelling reason for striking the statement of
claim, thus depriving the plaintiff of the right to
have the issues raised thereby adjudicated upon
according to their merits. These issues are said to
involve a duty of fairness owed to the plaintiff with
respect to his qualifications for the position of
District Administrator coupled with the corollary
question of whether the defendant Administrator
acted lawfully in classifying the competition as
"bilingual imperative". Mr. Aldridge makes the
further point that simply removing the proximate
cause of the action does not affect the legal cause
of action founded, as it is, on the facts giving rise
to the plaintiff's cause of complaint.
With respect to the declaratory nature of the
relief sought, plaintiffs counsel argues that clauses
(b) to (h) inclusive of the prayer for relief in the
statement of claim are not academic because they
go to the plaintiffs qualifications for the position
of District Administrator and the fairness said to
be owed him with respect thereto, whereby the
resolution of the dispute pertaining to his qualifi
cations and their fair assessment would have a real
and significant practical effect. In support of this
contention, counsel relies on the cases of Landre-
ville v. The Queen, [1973] F.C. 1223; 41 D.L.R.
(3d) 574 (T.D.) and Kelso v. The Queen, [1981] 1
S.C.R. 199; 120 D.L.R. (3d) 1.
As to the abuse of process aspect comprehended
by Rule 419(1)(f), counsel makes the point that
the defendants have pleaded over to the statement
of claim and are thus precluded from asserting this
ground for striking the statement of claim on the
principle of Procter & Gamble Co. v. Nabisco
Brands Ltd. (1985), 62 N.R. 364; 5 C.P.R. (3d)
417 (F.C.A.). Finally, he submits that the defen
dants have led no evidence to show any shifting in
the balance of convenience sufficient to justify any
change in the present status quo as reflected by
the order of Mr. Justice Muldoon.
Mr. Cousineau, Q.C., makes the following sub
missions in reply. He states quite frankly that the
purpose of the motion is to defuse the whole issue
by providing the plaintiff with the relief he initially
sought. Essentially, this will remedy any breach of
duty owed to the plaintiff, whether real or
apprehended, whereby the issue of whether the
bilingual imperative classification was fair at its
inception becomes totally irrelevant. Furthermore,
he presses the point that the Court has no jurisdic
tion to make a general direction to the effect that
the plaintiff will be treated fairly throughout the
whole selection process. Rather, this prerogative is
more properly the function of the selection process
envisaged by the Public Service Employment Act,
which affords adequate appeal protection to any
aggrieved candidate for appointment to a public
service position.
Mr. Cousineau concedes that the decision to
classify the position as bilingual imperative may
have been a mistake. However, the decision to
reclassify the position to what it was originally
rectifies this and has the beneficent effect of giving
the plaintiff all the practical relief sought by his
action. That being so, he puts this question: What
useful purpose would be served and what practical
effect could possibly be achieved by insisting that
the original cause of complaint proceed to a
speculative adjudication on allegations of unfair
ness and illegality, which are now rendered totally
immaterial and redundant? According to Mr.
Cousineau, it therefore follows that the factors
pleaded in paragraph 32 of the defence as the
inducement for classifying the position on a bilin
gual imperative basis have become entirely aca
demic and irrelevant by reason of the bona fide
willingness of the defendants to eliminate the
original cause of complaint.
The first question calling for answer is whether
the defendants should be permitted to change the
bilingual requirements of the competition back to
their former classification of bilingual non-impera
tive and further permitting the selection process
and competition to proceed to its ultimate conclu
sion by the appointment of a District Administra
tor for the Vancouver office. As previously indicat
ed, counsel for the plaintiff takes the position that
the plaintiff's cause of complaint would be serious
ly prejudiced by any change in the status quo as
mandated by the present injunction order.
In Manitoba (Attorney General) v. Metropoli
tan Stores Ltd., [ 1987] 1 S.C.R. 110, Mr. Justice
Beetz reviewed the principles applicable to the
granting of interlocutory injunctive relief as a
remedy for obtaining exemption or suspension
from the operation from constitutionally impugned
legislation, and concluded, at page 136:
... in cases involving interlocutory injunctions directed at
statutory authorities, they have correctly held it is erroneous to
deal with these authorities as if they have any interest distinct
from that of the public to which they owe the duties imposed
upon them by statute.
While the present case does not directly chal
lenge the constitutional validity of public service
employment legislation, unlike Metropolitan
Stores Ltd., it does, in my view, involve an inter
locutory injunction directed at the fountainhead of
statutory authority pertaining to the public service
competition for the position of District Adminis
trator in the Vancouver office. Consequently, I am
of the opinion that the public interest factor must
be taken into consideration in weighing the present
balance of convenience vis-Ã -vis the reclassification
of such position to bilingual non-imperative.
In Ellis v. Home Office, [1953] 2 Q.B. 135
(C.A.), Singleton L.J. stated this legal truism, at
page 143:
The desire of every court, above all things, is that every
litigant should have a fair chance and appear to have a fair
chance.
Morris L.J. in the same case, put it this way, at
page 147:
When considering the public interest ... it is to be remem
bered that one feature and one facet of the public interest is
that justice should always be done and should be seen to be
done.
The present injunction order was purposed to
stay the selection process and competition for the
position of District Administrator and prevent the
making of any appointment thereto under the
changed classification of bilingual imperative. This
was the mischief that was stopped. The defendants
now wish to rectify the mischief by reclassifying
the position to bilingual non-imperative. Should
they be prevented from doing so? I am compelled
to conclude that they should not. It seems to be
that it would be contrary to the public interest to
hold in abeyance the selection process and compe
tition, given the defendants' willingness to put
matters right by reclassifying the position to what
it was originally.
The old case of Jackson v. Spittal (1870), L.R.
5 C. P. 542, defined the words "cause of action"
[at page 542] as meaning "the act on the part of
the defendant which gives the plaintiff his cause of
complaint." This definition has stood the test of
time over the years. I cannot see that the granting
of an order in the terms of clauses a) and b) of the
present motion would seriously prejudice the plain
tiff's cause of complaint arising from the facts as
they existed at the time of the institution of action
or deprive him in any way of a fair chance of
litigating such cause of complaint. I am disposed
therefore to grant an order accordingly.
Given the permission so accorded, the remaining
point to be decided is whether the act of adjudica
tion with respect to the declaratory relief sought
by the plaintiff could have any practical and sig
nificant effect in resolving some real dispute aris
ing from the facts as they existed at the time of the
institution of action. It seems to me that the
question can be posed thus: Is there still a live
controversy between the parties that should be
litigated to its conclusion or has the original lis
now become entirely theoretical and academic? To
answer the question, it will be necessary to review
briefly the nature and scope of an action for
declaratory relief.
The starting point is Rule 1723 of the Federal
Court Rules, which reads:
Declaratory Actions
Rule l723. No action shall be open to objection on the ground
that a merely declaratory judgment or order is sought thereby,
and the Court may make binding declarations of right whether
or not any consequential relief is or could be claimed.
The Federal Court Rule is taken almost ver
batim from the former English Rule [Supreme Ct.
Rules], Order 25, Rule 5, which was adopted in
1883 under the Judicature Act (U.K.), 1873, c. 66
(Imp.) as a statutory outgrowth of the old Chan
cery practice. The counterpart of our Rule is found
in virtually all of the common law jurisdictions of
Canada.
The case of Simmons v. Foster, [1955] S.C.R.
324; [1955] 2 D.L.R. 433, held that declaratory
relief may be granted, even though a cause of
action does not exist, provided the plaintiff is
asking for some relief. But in such a case the
discretionary power of the court should be exer
cised with circumspection. Here, the declaration
was refused because it would have been ineffective
in resolving the difficulties between the parties,
and its granting would be "contrary to the accept
ed principles upon which the Court exercises
jurisdiction".
Estey J. explained the rationale at pages 330-
331 S.C.R.; 446 D.L.R.:
The respondent, in his counterclaim, asks a declaration, as
already stated, relative to the natural flow of the streams.
Newfoundland has adopted, as have many of the other prov
inces, Order 25, Rule 5 of the English Supreme Court Rules
under which may be made "declarations of right whether any
consequential relief is or could be claimed, or not." Such a
declaration may be made, even though a cause of action does
not exist, provided the plaintiff is asking for some relief. Swift
Current v. Leslie et al ((1916) 9 W.W.R. 1024); Kent Coal Co.
Ltd. v. Northwestern Utilities Ltd. ([1936] 2 W.W.R. 393);
Guaranty Trust Co. of New York v. Hannay & Co. ([1915] 2
K.B. 536). In this latter case Bankes L.J., at p. 572, states:
There is, however, one limitation which must always be
attached to it, that is to say, the relief claimed must be
something which it would not be unlawful or unconstitutional
or inequitable for the Court to grant or contrary to the
accepted principles upon which the Court exercises its juris
diction. Subject to this limitation I see nothing to fetter the
discretion of the Court in exercising a jurisdiction under the
rule to grant relief, and having regard to general business
convenience and the importance of adapting the machinery
of the Courts to the needs of suitors I think the rule should
receive as liberal a construction as possible.
Notwithstanding this liberal construction of the rule, the
authorities repeatedly emphasize that it is a discretionary au
thority which should be exercised with great care and caution.
Halsbury's Laws of England, 2nd Ed., Vol. 19, p. 215, para.
512; Annual Practice 1955, Order 25, Rule 5, p. 425;
Holmested & Langton, Ontario Judicature Act, 5th Ed., p. 47.
In MacLeod et al. v. White (1955), 37 M.P.R.
341 (N.B.S.C.) residential property owners
brought an action claiming, inter alia, a declara
tion that the defendant's proposed use of adjacent
property for the purposes of an asphalt plant was
contrary to a municipal zoning by-law. The Court
refused to grant the declaratory judgment on the
ground that it would have amounted to nothing
more than a legal opinion, without any binding
effect.
McNair C.J. stated the principle at page 361:
On principle I am impelled to the conclusion that declaratory
judgments can only be made where they constitute, or amount
to "binding declarations of right"—to quote the rule itself.
It is not the business of this Court to give opinions on
questions of fact or points of law which may be puzzling the
inhabitants of Lancaster. Its pronouncements must bind some
one for the benefit of someone. It seems to me that by their
proposed declarations the plaintiffs are seeking to elicit from
the Court a legal opinion, not a judicial opinion with binding
effects.
I fail to see how a declaratory judgment of the nature sought
would legally bind anyone or benefit anyone. It would have
been otherwise had the action been brought in the name of the
Attorney General. In that case such a declaratory judgment
would operate against the defendant Stephen for the benefit of
the inhabitants of the municipality at large. But as an act of
adjudication the declaratory pronouncements here sought
would be devoid of force or effect.
In Landreville v. The Queen, supra, the parties
to an action for declaratory relief agreed to submit
three questions of law for preliminary determina
tion before trial, pursuant to Rule 474. The Court
declined to answer two of the questions. The third
question was whether the Court had jurisdiction to
make a declaration on a legal issue in a case where
the declaration would be devoid of legal effects,
but would likely have some practical effects. The
Court answered the question in the affirmative,
holding that it had jurisdiction to grant a declara
tion which, though devoid of legal effect, would
serve some useful purpose from a practical point of
view.
In contrast, the case of Canadian Union of
Postal Workers v. Attorney-General of Canada
(1978), 93 D.L.R. (3d) 148 (F.C.T.D.), rejected a
claim for a declaration that anti-strike legislation
directed against the postal union infringed the
equality before the law provisions of the Canadian
Bill of Rights [R.S.C. 1970, Appendix III] on the
ground that the matter had become purely hypo
thetical and had ceased to be of practical signifi
cance. This case illustrates the traditional judicial
reluctance against entertaining actions for declara-
tory relief which pose nothing more than purely
academic and hypothetical questions.
As previously indicated, counsel for the defen
dants makes much of the point that the reclassifi-
cation of the competition for the position of Dis
trict Administrator to bilingual non-imperative
renders the issues raised by the plaintiffs case
entirely academic with the result that no useful
purpose would be served by proceeding to trial.
A similar point was raised in the case of Gibson
v. Union of Shop, Distributive and Allied Work
ers, [1968] 2 All E.R. 252 (Ch. D.). Here, the
plaintiff brought an action seeking a declaration
that his expulsion from membership in his trade
union and subsequent suspension were ultra vires
and void. The period of suspension had only three
weeks to run when the preliminary point was taken
that no useful purpose would be served in having
the case proceed to trial. The Court ruled against
the preliminary point and held that the action
should proceed to trial.
Buckley J. said, at page 254:
I can easily understand why, if a plaintiff starts an action
seeking declaratory relief in respect of some question of such a
kind that no legal results will flow from the declaration which
he seeks, the court will be disinclined to entertain his action and
to grant any relief in it; and I can understand that the action
would be dismissed as being one which it would serve no useful
purpose to try. If, however, when the action is instituted the
plaintiff has or may have a good ground of complaint, not of an
academic character but involving substantial legal issues, it
seems hard that, when the case comes on for trial, he should be
faced with the suggestion that it ought not to be tried because
by then the relief which he seeks has become much less
important or has ceased to have practical implications, owing to
the lapse of time between the date when he issued the writ and
the time when, having regard to the business of the court and
the necessary preparatory steps, the action comes on for trial.
Nevertheless, the issue between the parties is not in this case a
purely and exclusively academic one. Moreover, the powers
that are here said to have been improperly exercised by the
defendant union are disciplinary powers and the question
whether they were rightly or wrongly exercised, I think, may
well have repercussions which are not in the nature of legal
results flowing from that disciplinary action but are repercus
sions which might affect the plaintiff in his union in the future;
if, for instance, he desires to seek office in the future in the
union.
See also Grant v. Knaresborough Urban Coun
cil, [1928] Ch. 310, whére the plaintiff's action for
a declaration that a form of return required of him
under the Rating and Valuation Act [(Returns)
Rules, 1926 (St. R. & 0., 1926, No. 795, p.
1368)] was illegal and ultra vires was permitted to
proceed to trial, even though the defendants even
tually withdrew their defence denying the invalidi
ty of the form and stated that they did not propose
to contest the action.
Astbury J., acknowledging that the case was
very exceptional, stated the following grounds for
decision, at page 317:
This is an action asking for a declaration that certain parts of
this form were illegal and ultra vires. At the date of the writ the
plaintiff was entitled to make out that case. The form was then
withdrawn, but afterwards a defence insisting upon its validity
was put in. Later on that defence was withdrawn, and the
plaintiff had to consider what step to take. He was not bound in
the circumstances to move for judgment in default of defence
if, on such a motion, he could not obtain the relief he was
clearly entitled to. The declaration asked involved evidence as
to the invalidity of the form issued under the Act and the Court
would not have made a declaration of that nature on a motion
for judgment in default of defence without evidence and
argument.
In those circumstances the plaintiff was entitled to bring the
action to trial and establish by evidence his right to the
declaration.
The Supreme Court of Canada case of Kelso v.
The Queen, supra, bears some shades of similarity
to the case at bar. The appellant was an unilingual
anglophone air traffic controller who had been
transferred under protest from Montréal to Corn-
wall, after his Montréal position had been declared
bilingual. He brought an action in the Federal
Court for a declaration that he was entitled to be
reinstated to his former position. The action was
dismissed at trial [[1979] 2 F.C. 726 (T.D.)] and
on appeal to the Federal Court of Appeal [[1980]
1 F.C. 659] on the ground that his acceptance of
the transfer to Cornwall extinguished any declara-
tory rights he might have had with respect to the
Montréal position. It was argued on the appeal to
the Supreme Court that the Crown had an overrid
ing power to allocate and manage resources in the
public service and that no one had a vested right to
any particular position therein.
Mr. Justice Dickson [as he then was], writing
the opinion of the Court, thus characterized the
issue, at pages 208-209 S.C.R.; 8 D.L.R.:
The question is whether or not the Crown respondent had the
right to transfer Mr. Kelso out of his position on the sole basis
of his language ability. I have already concluded that the
Crown possessed no such right.
The learned Judge concluded with the following
statement of principle, at pages 210 S.C.R.; 9
D.L.R.:
The final submission of the Crown is that a declaration
should not be issued because it cannot have any practical effect.
It is argued that the Public Service Commission has the
exclusive right and authority to make appointments to the
Public Service. Any declaration by the Court could not have
the effect of precluding the exercise of such authority by the
Commission, thereby depriving the declaration of any possible
practical result.
It is quite correct to state that the Court cannot actually
appoint Mr. Kelso to the Public Service. The administrative act
of appointment must be performed by the Commission. But the
Court is entitled to `declare' the respective legal rights of the
appellant and the respondent.
The Public Service Commission is not above the law of the
land. If it breaches a contract, or acts contrary to statute, the
courts are entitled to so declare.
Basically, the plaintiff's complaint is that he was
unfairly treated by the defendants as a result of
the unreasonable, arbitrary and perverse decision
of the defendant Administrator in classifying the
competition for the position of District Adminis
trator as "bilingual imperative". He also puts in
issue the legality of the bilingual classification.
The plaintiff felt affronted by what he perceived to
be the violation of his legal rights and instituted
these declaratory proceedings in consequence
thereof. Has all this been so changed by the order
permitting reclassification of the position to "bilin-
gual non-imperative" that the subject-matter of
complaint has ceased to be a matter of tangible
dispute, whereby an adjudication of the issues
would be of little practical significance? I am
inclined to think not.
I turn now to the final point, which concerns the
merits of the motion to strike. It seems clear to me
from Mr. Cousineau's argument that the bases of
the motion are paragraphs (b) and (f) of Rule
419(1) or, as they may be compendiously termed,
Rules 419(1)(b) and 419(1)(f).
The Federal Court of Appeal case of Procter &
Gamble Co. v. Nabisco Brands Ltd., supra, on
which plaintiff's counsel strongly relies, is
undoubted authority for the proposition that a
defendant is generally precluded from moving to
strike his opponent's statement of claim under
Rules 419(1)(b) to (f) inclusive where he has
pleaded thereto and there has been a lengthy delay
in bringing on the motion, although the same
stricture does not apply to a motion to strike under
Rule 419(1)(a). In Nabisco, the Court of Appeal
approved the statement of principle expounded by
Mr. Justice Addy in Montreuil v. The Queen,
[1976] 1 F.C. 528, where he said, at page 529:
In so far as the first ground relied on by counsel for the
defendant is concerned, the general defence raised in reply tc
the statement of claim is fatal to it; when a party pleads it
reply to allegations contained in the opponent's pleading with
out raising an objection in law to the form or content of the
pleading, he may not subsequently raise an objection to the
opponent's pleading, without withdrawing or altering his own
pleading, submitted in reply to that against which he is object
ing .... [Emphasis added.]
In the result, I feel constrained to rule in favour
of the objection by plaintiff's counsel that the
defendants are precluded from relying on Rules
419(1)(b) and 419(1)(f) in support of their motion
to strike.
Clearly, the defendants would have been better
advised to have relied in their argument on the
broad thrust of Rule 419(1)(a) in mounting their
attack on the plaintiff's statement of claim, rather
than confine their forays to the objectives defined
in paragraphs (b) and (f) of the Rule. The fact
remains that Rule 419 was set out at large in the
notice of motion, the only limiting feature being
the use of the words "immaterial or redundant".
Rules of court are designed to facilitate and expe
dite the advancement of cases toward the attain
ment of justice and they should be liberally inter
preted with that ultimate end in view. Mr.
Cousineau argued forcibly that the reclassification
of the position to bilingual non-imperative would
have the double-barrelled effect of making the
justificatory allegations of paragraph 32 of the
defence academic and, at the same time, render
the plaintiffs action for declaratory relief totally
immaterial and redundant. What the defendants
are really asserting, by implication at least, is that
the reclassification of the position leaves the plain
tiff without any vestiges of a reasonable cause of
action. In my view, the mere choice of the words
"immaterial or redundant" is insufficient in the
circumstances to put the defendants squarely
beyond the pale of Rule 419(1)(a), and I propose
to treat the matter accordingly. What then should
be the result?
It is well settled that on a motion to strike a
statement of claim under Rule 419(1)(a) the facts
pleaded therein are taken to be true and the
motion will only be granted where it is plain and
obvious that the case pleaded is so clearly futile or
totally devoid of merit that it cannot possibly
succeed: Waterside Ocean Navigation Co., Inc. v.
International Navigation Ltd., [ 1977] 2 F.C. 257
(T.D.); Vulcan Equipment Co. Ltd. v. The Coats
Co., Inc., [1982] 2 F.C. 77 (C.A.); and Operation
Dismantle Inc. et al. v. The Queen et al., [1985] 1
S.C.R. 441; 18 D.L.R. (4th) 481.
Despite the defendants' contention that the
reclassification of the position changes the whole
nature of things, I am satisfied that the allegations
pleaded in the statement of claim with respect to
the violation of the plaintiff's legal rights and the
claims for declaratory relief consequent thereon
are sufficient to raise justiciable disputes requiring
adjudication at trial, as I have already found. It is
true that some of the claims for relief in the
concluding prayer of the statement of claim may
have to be refashioned or even eliminated in order
to confine the area of contest within its proper
limits. I am thinking here particularly of the
claims for certiorari and prohibitory relief con
tained in clauses (a) and (d) respectively. How
ever, I do not propose to pare and whittle away at
random at the plaintiff's statement of claim by
reason that I might inadvertently remove too
much. I feel that this function, if deemed neces
sary, can best be accomplished at trial after the
processes of discovery and other like pre-trial
procedures have run their course. To conclude, I
find that the defendants have failed to meet the
onus of establishing on balance of probability that
the plaintiff's action for declaratory relief is so
obviously futile and devoid of merit that it ought
to be struck on summary motion.
For these reasons, an order will go in the terms
of paragraphs a) and b) of the defendants' motion,
but the motion for an order to strike as set out in
paragraph c) thereof is refused. There will be no
costs of this application to either party.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.